Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1887-08-12
The Course of Suit In Patent Infringe
ment Cases.
To the Editor of the Free Press I:


patent. THIS history is pretty well known
to the inventor and the patent owner who
has had more than little experience i'm
obtaining the grant of letters patent from
the United States patent Office. There
fore, this matter for the present need not
be farther referred to.
But the second phase of the life of a
| patent is much less known, because AS is
the fact with a great majority of existing
patents, they are commercially of no value
to the owner. If, however, the invention
covered by the patent is pecuniarily valu-
able an yields large pecunlary returns,
| the owner of the patent Will certainly
have a struggle in the Federal courts to
keep infringers at bay. If the patent
| owner happens to be a rich man or a cor
poration, the infringer will be easily
routed especially if the wrong doer be
poor man. Where money is about equal
| ly matched on each side a Just result is
more likely to be reached But if, on the
other hand the patent owner happens to
be a poor man, and the infringer a rich
man or corporation, the owner of the
patent right need have no hope. In one
way or another, by hook or crook, the
rightful owner of the patent right will be
ultimately beaten. 1t must be under
stood that am now speaking only of such
patents rs have been or would be cpnsd-
cred rs valid by the Supreme Court of the
United States. When the money bags are
on the one side ola plainly invalid patent,
and the infrnger has nothing to protect
him but the empty bags, there, as in the
case of a valid patent, the money bags will
always win in the end. Here / have only
stated results, without details or reasons,
which may partially appear in this writ
ing, but more at length at some future
time. If what have stated is literally
and strictly true (as | know it isl and can
be proved to the American people, then
certainly nothing could be more startling
to an honest and patriotic mind except II
new CIVIL war and an open defiance of the
national laws. Practically, this is the re.
suit which | have stated, although it
may nave been reached in a roundabout
way. If the curious and nquiring reader
desires to read the details OF one IN many
ways in which plain law and justice may
| be plainly and absolutely nullifed in an
infringement suit where the patent was
actually sustained by the court, let him
send and get copy of The PdtCntCe,
Washington, ID. c., tor July, 1887, which
| has reprinted an article from the IlbdnH
LdW J0urHdt, and there he will find some
of the details of such a case which would
ito credit to the iinpeached New \ ork
! judges Barnard, CordoZo, etc.
With this general statement about the
necessary ammunition to be used in patent
| litigation, | will leave that branch for the
present.
| Eli Whitney. the inventor of the cotton
gin, died bankrupt, having spent all his
time, money, and all he could command,
in patent litigation, in the vain endeavor
to sustain his right TO the fruits of his
patented invention. Prior to the close of
the war it was but rarely that patent liti-
CATION was on the equity side of the court.
A suit at law-actiOn on the case-was
generally commenced against the in
fringer. In the reports of the patent
commissioner for the years 1915 and 1916
| the expressions of inventors and owners
OF patents by the money power is elo-
quently and pathetically portrayed, and
! Congress is lmplOred to do something in
order to protect the rights granted by pa
! tents. But Congress never did do any
thing in pursuance of these suggestions of
the commissioner and, by the way, 1t Is
well enough for inventors and patentees
to understand that Congress never hears
anything about their interests unless the
voices can be directly traced back to votes.
Right on the heels of the close of the war
patent suits began to be generally brought
on the equity side of the court so that
now, except in rare instances, suits for
the infringement of patents are commenc-
ed by bill of complaint seeking first an
injunction and then an accounting by the
infringer. This has been found to be
much more effective way to secure the
patent owners rights than suit at law,
seeking damages, has been found to be.
1t Is entirely safe to say that the manufac
turers in the country are very generally
interested in the rights secured by patents.
Therefore it will be, no doubt q matter of
interest to them to know somewhat in de-
tail precisely what the steps are which
owners of patent rights must take in or
der to secure their rights In a court of
leQuity-the tribunal now almost univer
sally selected in which to try infringement
suits. OF course, these steps are familiar
Datpnt q "a l.
ty of patent cases lltigated in the courts
But do not write for the information of
that class of persons.
First, the owner of the patenta scertai ms
that his patent is being infringed by some
person. The af1ldavlt of one or more per-
sons must be obtained to prove at least
one case of such infringement III order to
furnish basis for the SUIT. Then Il for
NAL bill of complaint must be written out,
addressed to the judges of the Circuit
Court of the United States of the circuit
IN which the infringement occurred. The
first thing that will strike the patent own
er as surprise, on reading this formal
bill of complaint against the infringer,
will he how carefully it ignores the pat
ent Office proceedings rs settling in any
way the validity of the patent, obtained
sometimes at the cost of hundreds and
even thousands of dollars. Indeed, the
whole theory underlying this bill of com
plant is precisely what it would be if pat
ents were granted merely upon the for
NAL application of the inventor, as they
always were granted before 1886.
In this bill of complaint it is usual TO
pray for temporary injunction to be
granted as soon rs the court can hear the
parties, which is usually in week or two
from the time of the service of the sub
pena on the defendant. The details of
practice in this regard vary in different
circuits. Affidavits are usually filed with
the bill for use at the hearing on the mo-
ton for temporary injunction. Counter
atiidavits are filed or may be filed by the
defendant, and the complainant has then
the right to file a second batch of affida-
Wits in reply to the defendants atfidavits.
And this closes the war of affidavits,
which afiidavits are of no possible use or
force, except on the hearing forthe pre-
lminary injunction-now ready to be
heard. 1t is in the discretion of the Judge
to grant or refuse the temporary injunc-
ton. But it is not an arbitrary discretion.
The discretion of judge, as Chief JUS
tice Marshall used to say, is not the will
or wish of the judge, but is subject to
rules of law and justice as much as though
specifically defined by statute Even if